Obama as Bush 2.0 on the National Security Constitution

The Obama administration has embraced some of the most dangerous and expansive national security positions of the Bush administration and threatens to set a new baseline for presidential authority, according to a report just released by the ACLU.  The report, Establishing a New Normal: National Security, Civil Liberties, and Human Rights Under the Obama Administration, argues that the Obama administration's significant progress in certain areas related to national security are more than offset by the administration's backtracking to the Bush administration positions.  From the Introduction:

But in the eighteen months since [President Obama issued a series of executive orders repudiating the Bush policies on torture, interrogation, secret detention, and Guantanamo Bay], the administration's record on issues related to civil liberties and national security has been, at best, mixed.  Indeed, on a range of issues including accountability for torture, detention of terrorism suspects, and use of lethal force against civilians, there is a very real danger that the Obama administration will enshrine permanently within the law policies and practices that were widely considered extreme and unlawful during the Bush administration.  There is a real danger, in other words, that the Obama administration will preside over the creation of a "new normal."

The report examines administration policies on government transparency and release of information, accountability of government officials for torture, indefinite executive detention, targeted killings, military commissions, and government surveillance.

This is a good read and an important part of the continuing conversation about administration national security policies.  We routinely cover these issues--just check out our posts under the War Powers tag--and have similarly concluded that the Obama administration has adopted some of the Bush administration's constitutional positions on presidential authority and national security.  (I also make the argument on the Obama administration's use of the state secrets privilege here.)

But the report's conclusion that the administration "will enshrine permanently within the law" certain policies and practices is perhaps overly dire.  For example, some of President Obama's positions have received push-back from Congress; and President Obama has repeatedly signaled that Congress matters--that he will respect Congress in acting under the national security constitution.  Unlike President Bush, President Obama has relied only sparsely on inherent executive authority under Article II, instead looking first to congressional authorization for his actions.  His consistent reliance on the AUMF before any inherent Article II authority is a good example.

Moreover, some of the Obama administration's positions have received push-back from the courts.  Most recently, federal courts have rejected the administration's more outlandish positions in Guantanamo habeas cases.  (The administration itself scaled back its prior expansive definition of a detainable person.)  The full Ninth Circuit now has a chance to reject the administration's extreme position on the state secrets privilege in the Jeppesen case.

Finally, the administration's actions alone simply cannot "enshrine permanently in the law" those extreme policies and positions that never reach Congress or the courts, especially for a president who claims to rely sparsely on inherent Article II authority.  In these areas the President at most establishes an executive precedent.  The practice and precedent of President Obama will be important, to be sure, in interpreting future executive authority, but this is not "enshrin[ing] permanently in the law."  (This kind of past practice doesn't bind a future executive to also adopt it.  Instead, at most, it sets an outer limit to presidential authority with reference to what President Obama did.)

But in the end, it's exactly this practice and precedent in these limited but important areas that make some of President Obama's national security positions potentially durable beyond the next two or six years.  The ACLU report thoughtfully examines these and well captures their potential durability in its apt phrase "The New Normal."

SDS